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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
American Family Association ) File No. EB-02-KC-236
) NAL/Acct. No. 200232560005
Licensee of Station KBKC-FM ) FRN 0005-0259-11
Moberly, Missouri )
FORFEITURE ORDER
Adopted: September 20, 2002 Released: September 24,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand dollars
($5,000) to American Family Association (``AFA''), licensee of
Station KBKC, a noncommercial, educational FM station licensed
to Moberly, Missouri, for willful violation of Section 73.1125
of the Commission's Rules (``Rules'').1 The noted violation
involves AFA's operation of Station KBKC without a main
studio.
2. On May 28, 2002, the Commission's Kansas City,
Missouri, Field Office (``Kansas City Office'') issued a
Notice of Apparent Liability for Forfeiture (``NAL'') to AFA
for a forfeiture in the amount of seven thousand dollars
($7,000).2 AFA filed a response to the NAL on June 18, 2002.
II. BACKGROUND
3. On April 8, 2002, an FCC agent from the Kansas City
Office attempted an inspection of Station KBKC-FM, which is
licensed to Moberly, Missouri. Investigation revealed no
listing for the station in the local telephone directories.
The agent went to the station's transmitter site and found a
sign on the tower with the phone number 662-844-8888. The
agent called this number and spoke with two AFA employees in
Tupelo, Mississippi. These AFA employees stated that there
was no main studio for KBKC and that the station's public
inspection file was located at the Little Dixie Regional
Library in Moberly. The agent inspected the public inspection
file and did not find a grant of a waiver of the main studio
rule for the station in the file. A subsequent search of
Commission records revealed that AFA had not been granted a
waiver of the main studio rule for KBKC.
4. On May 28, 2002, the Kansas City Office issued an NAL
for a $7,000 forfeiture to AFA for apparently failing to
maintain a main studio for KBKC in willful violation of
Section 73.1125 of the Rules. In its response to the NAL, AFA
acknowledges that it did not have either a main studio for
KBKC or a waiver of the main studio rule at the time of the
inspection. Nevertheless, it requests cancellation of the
forfeiture or reduction of the forfeiture to a ``token''
amount. First, AFA claims that it made diligent efforts to
comply with the rules by submitting a request to operate KBKC
as a satellite before the station was built. AFA states that
in January 2000 it filed a request for waiver of the main
studio rule to operate new station KBKC as a satellite of an
existing station which it owned, KAKU-FM, Springfield,
Missouri, but it later sold KAKU and forgot to amend the main
studio waiver request.3 AFA further states that on November
9, 2001, it completed construction of KBKC, put the station on
the air, and applied for a license to cover the construction
permit, despite the fact that permission to locate the main
studio outside the community of license had not been granted,
because its construction permit for KBKC would have expired on
November 16, 2001. AFA asserts that because KBKC fit squarely
within the standards the Commission had generally applied in
granting main studio waivers, it had built the station as a
satellite operation without a studio and it began operating
the station on November 9, 2001, counting on the waiver being
granted during licensing.
5. In addition, AFA asserts that on February 22, 2002, it
notified the FCC staff person processing its license
application for KBKC that it was operating KBKC as a satellite
pending receipt of the waiver. AFA maintains that the FCC
staff person required it to withdraw its original main studio
waiver request since it no longer owned KAKU and stated that
it could not amend the waiver request until after the license
was granted. AFA also asserts that on April 9, 2002, the day
after the FCC agent attempted to inspect KBKC and observed
that the station did not have either a main studio or a waiver
of the main studio rule, it filed a request for a waiver of
the main studio rule to operate KBKC as a satellite of WAFR-
FM, Tupelo, Mississippi. The Media Bureau's Audio Division
granted this waiver request on May 6, 2002.4 Thus, AFA argues
that no forfeiture should be imposed here because the
Commission has determined that good cause exists to operate
KBKC as a satellite station. Finally, AFA notes that in a
conversation with the inspecting agent on April 16, 2002, and
again in a meeting with the Audio Division on April 23, 2002,
it offered to take KBKC off the air until the waiver request
was processed, but was told that was not necessary.
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),5 Section 1.80 of the Rules,6 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining AFA's
response, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the
violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice
may require.7
7. Section 73.1125 of the Rules states that each broadcast
station shall maintain a main studio at one of the following
locations: (1) within the station's community of license; (2)
at any location within the principal community contour of any
AM, FM, or TV broadcast station licensed to the station's
community of license; or (3) within 25 miles from the
reference coordinates of the center of its community of
license. AFA admits that it did not have either a main studio
for KBKC or a waiver of the main studio rule at the time of
the inspection. Accordingly, we conclude that AFA willfully
violated Section 73.1125 of the Rules.
8. We disagree with AFA's assertion that the $7,000
forfeiture for this violation should be cancelled or reduced
to a token amount. First, we are not persuaded that AFA made
diligent efforts to comply with the rules prior to putting
KBKC on the air in November 2001. We reject AFA's suggestion
that it was justified in putting KBKC on the air without a
waiver of the main studio rule because it was counting on the
waiver being granted. In this regard, consistent with general
principles regarding all FCC requirements, we note that the
main studio rule explicitly warns licensees and permittees
that the filing of a request for waiver of the main studio
rule does not imply approval of the request, because each
request is addressed on a case-by-case basis.8 In any event,
AFA's original waiver request proposed to operate KBKC as a
satellite of KAKU, which it sold in March 2001. AFA did not
amend its waiver request when it sold KAKU and therefore did
not have a valid waiver request on file with the Commission
when it began operating KBKC in November 2001. AFA's
assertion that it forgot to amend its waiver request does not
mitigate its violation. Further, if AFA was concerned with
putting KBKC on the air before the November 16, 2001,
construction deadline, it could have brought the matter to the
Commission's attention or requested special temporary
authority to operate without a main studio at that time.
9. Moreover, the FCC staff person who processed AFA's
license application for KBKC told AFA that it could file a
waiver request after the license was granted. The former Mass
Media Bureau granted AFA's license application on February 27,
2002. AFA offers no explanation why it did not immediately
file a waiver request at that time. Additionally, the fact
that AFA filed a waiver request, and the Commission found good
cause to grant this request, after the inspecting agent
discovered the main studio violation does not justify
cancellation of the forfeiture amount. Likewise, the fact
that AFA offered to take KBKC off the air until the waiver
request was processed does not mitigate the violation. The
Commission has stated that remedial actions taken to correct a
violation are not mitigating factors.9
10. Nevertheless, we conclude that some reduction of the
forfeiture amount is appropriate because AFA disclosed to
Commission staff in February 2002 that it was operating KBKC
as a satellite station without a waiver of the main studio
rule. Accordingly, we reduce the forfeiture from $7,000 to
$5,000.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,10 American Family Association IS LIABLE FOR A
MONETARY FORFEITURE in the amount of five thousand dollars
($5,000) for willful violation of Section 73.1125 of the
Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.11 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232560005 and FRN
0005-0259-11. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.12
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Patrick
J. Vaughn, Esq., American Family Association, P.O. Drawer
2440, Tupelo, Mississippi 38803.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.1125.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232560005 (Enf. Bur., Kansas City Office, released May 28,
2002).
3 AFA's application to assign the license for KAKU to
Community Broadcasting, Inc. (File No. BALED-2001222AAQ) was
granted on February 7, 2001, and the assignment was consummated
on March 30, 2001.
4 Letter from Peter H. Doyle, Chief, Audio Division, Office of
Broadcast License Policy, Media Bureau, to Donald E. Wildmon,
President, American Family Association (May 6, 2002). The Audio
Division inadvertently granted AFA a waiver of the main studio
rule to operate KBKC as a satellite of KAKU, rather than WAFR.
By letter dated August 15, 2002, the Audio Division, on its own
motion, issued a corrected letter granting AFA a waiver of the
main studio rule to operate KBKC as a satellite of WAFR. Letter
from Peter H. Doyle, Chief, Audio Division, Office of Broadcast
License Policy, Media Bureau, to Donald E. Wildmon, President,
American Family Association (August 15, 2002).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 C.F.R. § 73.1125(d)(2).
9 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.